PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________________
Nos. 95-4099 and 95-4596
________________________________
FILED
U.S. COURT OF APPEALS
D.C. Docket No. 94-322-CR-JM ELEVENTH CIRCUIT
09/23/98
THOMAS K. KAHN
UNITED STATES OF AMERICA, CLERK
Plaintiff-Appellee,
versus
DANIEL J. FERN,
Defendant-Appellant.
_________________________________________________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________________________________________________
(September 23, 1998)
On Petition for Rehearing
Before HATCHETT, Chief Judge, COX, Circuit Judge, and MESKILL*, Senior Circuit Judge.
________________________________
*
Honorable Thomas J. Meskill, Senior U.S. Circuit Judge for the Second Circuit, sitting by
designation.
HATCHETT, Chief Judge:
Upon motion for reconsideration, the prior panel opinion, reported at 117 F.3d 1298, is
withdrawn, and the following opinion is substituted in its stead.
In this consolidated appeal, we affirm the convictions of Daniel Fern for mail fraud,
attempted witness tampering and violations of the Clean Air Act.
FACTS
The events leading up to Fern’s indictment and eventual convictions began on October 3,
1993. Early that morning, a fire partially damaged the Monte Carlo Oceanfront Resort Hotel, a
thirteen-story building on Miami Beach. The Monte Carlo was insured for up to two million
dollars under a fire loss policy the Lexington Insurance Company issued. Under the fire loss
policy, Lexington agreed to pay for asbestos removal and contamination at the Monte Carlo, but
only if the asbestos-related contamination occurred as a result of a fire.
Shortly after the fire, Waquar Ahmed Khan, the president of the company that owned the
Monte Carlo, contracted with Fern to determine whether the Monte Carlo’s conference room and
suites were contaminated with asbestos as a result of the fire. At the time, Fern owned an
asbestos testing and consulting firm known as Air Environmental Research Services (AER).
Fern then orchestrated a fraudulent scheme to (1) convince Lexington that the Monte Carlo was
contaminated thoroughly with asbestos; and (2) profit from a bogus asbestos abatement project
at the Monte Carlo.
The scheme unfolded, in part, as follows. Fern directed the Monte Carlo project
manager, Jerry Joyner, to take a piece of “Mag Block” -- a material containing chalky, crushable
asbestos -- from a crawl space at the Monte Carlo. Fern then directed Jerry Joyner to take some
2
“hot” air samples from the Monte Carlo using the Mag Block to spike the samples. (In total,
Jerry Joyner spiked over twenty samples, often in the presence of Fern, Fern’s wife or other AER
employees.) After Jerry Joyner spiked the samples, he labeled some of them -- at Fern’s request
-- as if they came from the Monte Carlo’s pipe-chases. Fern made this request in order to
support a claim of asbestos contamination within the entire Monte Carlo resort.
After receiving test results from the spiked air samples, Fern’s company, AER, proceeded
to prepare an emergency action plan detailing a proposed asbestos abatement project for the
Monte Carlo. Neither Fern nor AER was licensed to conduct asbestos abatement or removal
work. Consequently, Fern needed to list the name of an authorized asbestos abatement company
on the asbestos abatement project paperwork required under 42 U.S.C. § 7413, a provision of the
Clean Air Act.1
On October 13, 1993, Fern, or one of his employees, filed the first of three Ten-Day
Notices completed during the course of the proposed Monte Carlo asbestos abatement project.
This Ten-Day Notice -- as well as subsequent notices filed on December 14, 1993, and April 4,
1994 -- contained false responses indicating that a company named Action Systems Unlimited,
Inc., was responsible for the asbestos abatement project at the Monte Carlo, and that Judy Joyner
-- Jerry Joyner’s sister-in-law and the president of Action Systems -- was the on-site supervisor.2
The Ten-Day Notice also contained Judy Joyner’s forged signature on the notice lines indicating
1
Specifically, Fern needed to list the name of an authorized company on government-
required “Notification of Demolition and Renovation” forms, commonly known as “Ten-Day
Notices.”
2
The third notice is slightly different from the first two notices and is captioned “Notice of
Asbestos Removal Project.” While the first two notices are two-page forms, the third notice is a
one-page form. The differences between the forms do not affect our analysis.
3
that the information on the notice was correct and that an appropriately trained individual would
be on-site at the Monte Carlo during the asbestos abatement project.3 The first and third Ten-
Day Notices also contain references to Judy Joyner’s Florida asbestos removal license number.
Neither Judy Joyner nor Action Systems ever did any work at the Monte Carlo.
Moreover, Judy Joyner testified at trial that she never authorized anyone to sign her name, use
Action Systems's name or use her asbestos removal license number on a Ten-Day Notice for the
Monte Carlo asbestos abatement project. Nevertheless, Fern instructed Jerry Joyner to tell
anyone who inquired that he worked for Action Systems and that Action Systems was the actual
asbestos removal contractor at the Monte Carlo.
At trial, two officials with the Metropolitan Dade County Department of Environmental
Resources Management (DERM) testified about the significance of the Ten-Day Notices.
According to Hugh Wong, chief of DERM’s Air Pollution Control section, Ten-Day Notices are
federally required notices that provide information on sites so that regulators can make sure that
work is going to be done properly. Wong testified that he “absolutely” relied on the information
contained in Ten-Day Notices and that it is important for the information to be accurate. Wong
also indicated that DERM uses the information in Ten-Day Notices to determine if the contractor
is certified or not, and stated that “if we have not inspected that contractor’s work before, we try
and target the inspections [to that contractor].” Ray Gordon, a DERM asbestos supervisor,
testified that before employees in his office input information from Ten-Day Notices into their
computers, they check to make sure that the contractor has a license number noted on the Notice
3
The text under Judy Joyner’s forged signature indicated that the signature above
belonged to the “Owner/Operator” -- an apparent reference to the facility owner or renovation
project supervisor.
4
and that the contractor is familiar to them. According to Gordon, the only way DERM officials
can know if the individual removing asbestos is properly trained is “if they have the appropriate
license.”
In addition to submitting false Ten-Day Notices, Fern, and/or AER, also filed documents
representing that the contents of the Monte Carlo (e.g., room furnishings and equipment) had to
be destroyed because of asbestos contamination. In actuality, Fern gave away, sold or kept most
of the Monte Carlo’s furnishings and equipment.
Ultimately, Fern submitted a bill for over five hundred thousand dollars to the Monte
Carlo for the cost of the bogus asbestos abatement project. The bill was converted into a proof-
of-loss and submitted to Lexington via the mail. At trial, Daniel Corbeil, a former co-owner of
Action Systems, testified that Fern bragged to him about how he fooled Lexington with spiked
samples and with the Action Systems license.
In 1994, the Environmental Protection Agency (EPA) started investigating Fern’s work at
the Monte Carlo. Jerry Joyner and other AER employees cooperated with the EPA. Jerry Joyner
played a critical role in the investigation; he taped his conversations with Fern. During those
conversations, Fern offered Jerry Joyner ten thousand dollars to mislead investigators and told
him to lie to the grand jury.
PROCEDURAL HISTORY
A grand jury indicted Fern on June 16, 1994, charging him with one count of witness
intimidation. The government obtained a superseding indictment from the grand jury on August
12, 1994, charging Fern with eight other counts: three counts of making false statements, four
counts of mail fraud and one count of witness tampering.
5
Fern’s first trial began on November 28, 1994. Prior to the testimony of the
government’s first witness, Fern moved to dismiss the three false statement counts of the
indictment for failure to allege essential elements of the charged crime. Fern argued that the
indictment was insufficient because it did not allege that the statements were made willfully or
that the statements were material. Fern also argued that the indictment did not inform him of the
specific statements that were allegedly false. The district court denied Fern’s motion and
allowed the government to proceed with its presentation of evidence on all counts of the
indictment.4
On November 28, 1994, the government called its first witness, Bureau of Alcohol,
Tobacco and Firearms (ATF) Special Agent Nelson Vasquez. Two days after Vasquez testified,
on December 1, 1994, the prosecutor received a sworn statement dated December 1, 1994, from
ATF Internal Affairs. The statement revealed that Vasquez misused his government credit card
and was under investigation for theft of government property. The next day, Friday, December
2, 1994, the prosecutor produced a Brady disclosure regarding the Vasquez misconduct. The
following trial day, Monday, December 5, 1994, Fern sought to recall Vasquez to the stand for
further examination. The prosecutor informed Fern that Vasquez would invoke the Fifth
Amendment and decline to answer defense questions. After verifying this, Fern asked for a
mistrial, which the district court granted.
4
In her response to Fern’s motion to dismiss, the prosecutor specifically indicated that the
false statements on the Ten-Day Notices were as follows: (1) statements indicating that Action
Systems was the contractor doing the abatement project; (2) statements indicating that Judy
Joyner was the project’s contact person; and (3) statements indicating that Judy Joyner signed
the Ten-Day Notices. Fern did not renew his motion to dismiss the indictment prior to his
second trial.
6
Fern subsequently moved to dismiss the case based on the Double Jeopardy Clause. Fern
based his motion on the fact that Thomas Mulvihill, an Assistant United States Attorney (AUSA)
in the Public Corruption Section, knew about the Vasquez investigation as early as November
15, 1994, but never shared his knowledge with the prosecutor in Fern’s case.
The district court conducted an evidentiary hearing on the mistrial motion during which
the district court questioned the prosecutor and AUSA Mulvihill, and heard arguments from the
prosecutor and Fern regarding applicable case law. The district court also allowed Fern to
question Mulvihill. During questioning, Mulvihill testified that he learned about allegations
against Vasquez as a result of a conversation with an ATF Internal Affairs agent. During the
conversation, the ATF agent told Mulvihill that it was possible that a “totally innocent
explanation” existed for Vasquez’s actions. Mulvihill also indicated that he and the ATF agent
agreed that the matter should initially proceed through the ATF’s administrative process.
Mulvihill then stated that he did not even hear about the Vasquez matter again until after Fern’s
trial commenced. Mulvihill further testified that he was unaware that Vasquez was the case
agent in any pending cases. Finally, Mulvihill stated that he was unaware of any policy
requiring him to notify other attorneys about allegations against ATF agents that his office was
not pursuing.
After considering the evidence and arguments, the district court orally denied Fern’s
motion. The district court later entered a written order denying Fern’s mistrial motion and
Fern’s ore tenus motion to stay proceedings pending an appeal on the alleged double jeopardy
violation. The district court then scheduled a second trial for January 19, 1995. Fern appealed
the district court’s order, and that appeal is consolidated here.
7
In Fern’s second trial, Vasquez did not testify, and the government dropped the witness
intimidation count. During the course of the second trial, Fern presented expert testimony that
the Monte Carlo could have been contaminated from the fire; witness testimony that Jerry Joyner
spiked the samples; and witness testimony that Curry Joyner, Judy Joyner’s ex-husband, signed
Judy Joyner’s signature on the Ten-Day Notices with her authorization. Fern also sought to
cross-examine witnesses about, or introduce polygraph evidence relating to, Jerry Joyner, but
was allowed to do so only to a limited extent.5
The jury in Fern’s second trial convicted him on February 7, 1995. Fern received a
sentence of fifty-seven months of imprisonment, plus a subsequent three-year term of supervised
release and a four hundred dollar special assessment.
ISSUES
Fern raises six issues on appeal. We find each unpersuasive and address only three: (1)
whether the Double Jeopardy Clause barred Fern’s retrial after Fern requested a mistrial; (2)
whether the superseding indictment contained sufficient information to sustain the three false
statement counts against Fern; and (3) whether the district court’s failure to submit the issue of
materiality to the jury was harmless error.6
CONTENTIONS
5
Fern first tried to cross-examine EPA agent John Lara, after Lara indicated on direct
examination that he corroborated Jerry Joyner’s testimony with a polygraph. Fern later tried to
cross-examine Jerry Joyner regarding the polygraph results. In both instances, the district court
strictly limited Fern’s examination, based, in part, on the government’s representation that Jerry
Joyner failed only a part of the polygraph.
6
Fern’s other appeal issues concern various evidentiary rulings and the jury instruction in
this case. We affirm on these issues pursuant to Eleventh Circuit Rule 36-1.
8
Fern contends that the Double Jeopardy Clause barred his retrial because the
government’s conduct left him with no choice but to ask for a mistrial. Fern also contends that
the false statement counts of the indictment against him were insufficient because they failed to
include necessary allegations of willfulness and materiality, and failed to identify the particular
false material statements Fern made. Finally, Fern contends that the failure to submit the issue
of materiality to the jury was “incurably prejudicial,” i.e., not harmless error, because a
reasonable juror could have concluded that the alleged false statements were not material
because environmental officials did not rely on the statements in their decision-making process.
The government contends that the Double Jeopardy Clause posed no barrier to Fern’s
retrial because the prosecution did not “goad” Fern into requesting a mistrial. The government
also contends that the false statement counts of the indictment contained sufficient allegations to
apprise Fern of the charges against him and to warrant an inference that the grand jury found
probable cause to support all the essential elements of the charges against Fern. Finally, the
government contends that materiality was not a jury issue in this case. Alternatively, the
government contends that the failure to submit the issue of materiality to the jury did not
constitute reversible error because no reasonable juror could have found that the alleged false
statements in this case were not material.
DISCUSSION
A. Double Jeopardy
Ordinarily, the Double Jeopardy Clause does not bar retrial after the grant of a mistrial
upon the defendant’s motion. United States v. Torkington, 874 F.2d 1441, 1444 (11th Cir.
1989). If the prosecution’s actions compelled the defendant to move for a mistrial, however, the
9
Double Jeopardy Clause does bar retrial. 874 F.2d at 1444. As we observed in Torkington, a
defendant is compelled to move for a mistrial if the prosecution intentionally goaded the
defendant into moving for a mistrial. 874 F.2d at 1444.7 The inquiry into the prosecution’s
intent is, for the most part, a matter to be inferred from objective facts and circumstances. See
Oregon v. Kennedy, 456 U.S. 667, 679-80 (1982) (Powell, J., concurring) (“Because